Brief of Respondent in Opposition to Petition for Certiorari — Shawkee Manufacturing Co. v. Hartford-Empire Co.

—

PAGE

Reports of Decisions..................... 1

tement of the Ce...

The controlling facts found by the Court below 4

of Argument. Wie 7

First Point. The judgment below was based on

three separate and distinct grounds. Two

of these grounds, either of which was suffi-

eient fully to dispose of the case, are not

—— — ,

' ‘erefore, certiorari is inappropriate; . .

Second Point. 4

conflict with the decisions of other Circuit

Third Point. The joligment below to aot in bes-

flict with the decisions of this Court......

Fourth Point. Petitioners’ contention, that the

decision in the Hazel infringement suit “is

the machinery for effecting the fraud by

which respondent has monopolized a major

industry“ is unsound in fact and presents

no proper ground for certiorari

Fifth Point. There is no conflict between the

2 4 „ „% „ „ 60606 0606 CECE „0% 0 0 00 0 06 00 0

pigment below „8

10

10

14

ii Table of Cases Cited.

FFF! ͤ roe Tene 3

Shawkee’s Inactivity from 1934 to 1941.

Petitioners’ Reasén for Resuming Activity in

— ccd neeeade eka eee 3 ‘oc.

Table of Cases Cited - .

Alice State Bank et al. v. Houston Pasture Co., 247

Art Metal Works, 1 v. Abraham & Straus, Inc.

(C.C.A. 2), 70 F. 2d 639; 70 F. 2d 641; 107 F.

2d 940; 107 F. 2d 944; certiorari denied 308

US. ee ay ein ene 8, 15, 17

Beidler v. Photostat ‘aia, certiorari denied |

c F ress 17

Bronson v. Schulten, 104 v. 8. 410, A 14

Casey v. Sterling Cider Co. (C. C. A. 1), 15 F. 2d

8 POR er ey Freer eee 14, 19

‘Commercial Trust Co. v. United States, 293 U.S. 584 18

Dobson v. United States (C. C. A. 2), 31 F. 2d 288;

certiorari denied 278 U. S. 65 % ꝙrr 14

Dowagiac Mfg. Co. v. McSherry Mfg. Co. (OA. 6),

155 F. 524, 527, 528....... . . 23

"Table of Cases Cited. | ii

PAGE

Foster Bros. Mfg. Co. Inc. v. National Labor Rela-

tions Board (C.C.A. 4), 90 F. 2d 948. 15

General Talking Pictures Corp. v. Western — ö

Co., 304 U.S. 175, 170.f—I— . 13

Guaranty Trust Co. of New York et al. v. inne

‘apolis & St. L. R. Co. et al. (C. C. A. 8), 98 F. 2¢

i cg TEE EES RE TC . .. 15, 19

Hart et al. v. Wiltsee et al. (C. C. A. 1). 25 F. 2d

f ff... —. Tee rrr oer ery 14, 19

" Hawkins v. Cleveland, C., C. & St. L. Ry. Co. (C.C.A.

yͤ;;õ ¾ AAA we koe Saw ce 15

Hazel-Atlas Glass ; Company’ v. Barttord- Dnpire se

Company (C. CA. „ 1

Helis v. Ward, 308 U.S. | ee . 11

In Re New England n Co. (C. C. A. 1), 9

N F. 2d 344. ree are Neer cep ee ee 18

Keller v. Adams-Campbell Co., 264 US. 314....... 12

Keystone Driller Co. v. General Excavator Co., 290

1 JFC 9; 23, 27

Magnum v. Coty, 262 U.S. 159, 16. 13

Marshall v. Holmes, 141 U.S. 589... 8, 20, 21, 22

; Montgomery v. Realty Acceptance Corp. (C. C. A. 3),

51 F. 2d 642; affirmed 284 U.S. GAT. . ces: 15

Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, 5

604-5. JJJJVVTVVVTVVFVVVVVVVC C 11

Nachod et al. v. Engineering & Research Corpora:

tion (C. C. A. 2), 108 F. 2d 59 “44. 8, 14 16, 17

0 Fnucyolopedia Cited.

ä ee

ä PAGE

Realty Acceptance Corporation v. Montgomery (D.C.

Del.), 6 F. Supp.*593, affirmed 77 F. 2d 762

(C. C. A. 3), certiorari denied 296 US. 590, re-

hearing denied 296 U.S. 662................. 23.

Reynolds et al. v. Manhattan Trust Co. eel (cca. *

8), 109 F. 97, 98-99......... 8 1 15

Southern Power Co. v. North Carolina Public Serv-

n 13:

Sundh Electric Co. v. Cutler-Hammer Mfg. Co.

„ 9 » W 3 ee cnn es 14

Toledo Scale Co. v. Computing Scale co., 261 US.

. „ CCC a

United States ex rel. Fisher v. Williams (C. C. A. 8),

—. tei vayiaena peer dane acs .. 2

United States v. Johnston, 268. U. S. 220, 227...... „

United States v. McFarland, 275 U.S. 488. 2

United States v. Morgan, 307 U.S. 183, 197 2

United States v. Sterling (C. C. A. 2), 70 F. 2d 708. 18

United States v. Throckmorton, 98 U.S. 61. . 8, 20, 21, 22

Watts, Watts & Co., Limited, v. Unione Austriaca

Di Navigazione (C. C. A. 2), 239 F. 1023. 14

Winslow v. Staab (C. C. A. 2), 242 F. 426. —

| _ Encyclopedia Cited: |

Cyclopedia of Federal Procedure, Vol. 4, Sec. 1159,

„„ „„ cc ae

In THE

- Supreme Court of the United States

OCTOBER TERM, 1943

NO. 423

SHAWKEE MANUFACTURING COMPANY,

GLENSHAW GLASS COMPANY,

McKEE GLASS COMPANY,

GEORGE K HAUB, Petitioners,

V.

1 COMPANY, .

Respondent

BRIEF FOR RESPONDENT, HARTWORD-EMPIEE

‘COMPANY, IN OPPOSITION TO PETITION .

FOR WRIT OF CERTIORARI

Official Reports of Decisions.

The decision of the court below is reported at 137

F. 2d 764 and appears at page 93 of the Record. That

decision disposed not only of this case, but also of a

companion case, Hazel-Atlas Glass Company, petitioner,

v. Hartford-Empire Company, now the subject of a

_ petition to this Court, No. 398 at this Term.

The earlier decision of the Circuit Court of Appeals,

upon which was based the judgment sought to be re-

2 Counter-Statement of the Case.

opened by the present proceeding, appears at 68 F. 24

726. That opinion was filed January 11, 1934 and judg-

ment was entered on the same aay.

Counter-Statement .of the Case.

‘ae convenience and brevity, petitioners will be

referred to as Shawkee“, respondent as “Hartford”,

the petitioner at No. 398 as “Hazel”, the earlier litiga-

tion against Shawkee reported at 68 F. 2d 726 as “the

Shawkee infringement suit”, and the earlier litigation

against Hazel reported at 59 F. 2d 399 as “the Hazel

infringement suit”.

Although entitled below in the Shawkee infringe-

ment suit (disposed of by the Court of Appeals in

1934), the petition for certiorari seeks to bring before

this Court only the proceedings on a “petition for leave

to file a bill of review”, filed in October 1941, but -

amended in January 1942 by striking out the original

prayers and asking instead (1) that the Court of

Appeals, on the ground of alleged fraud, set aside the

judgment it had entered in the Shawkee infringement

suit in 1934, vacate the final decree entered therein

in the District Court, recall the mandate and restore the

case to the docket of the Court of Appeals for reargu- .

ment; (2) that the Court of Appeals dismiss the suit

on the ground of unclean hands; and (3) that the Court

of Appeais determine and assess damages “because of

plaintiff s fraudulent and unlawful use of its patents“,

and that the damages be trebled.

Briefly stated, Shawkee’s contentions are that the

decision of the Court of Appeals in the Hazel in-

= | Counter-Statement of the Case. 3

| ingement suit was procured by fraud, in that it was

Anduced by the Clarke article, that the decision in the

Shawkee infringement suit was the result of what tran-

* spired in the Hazel infringement suit, and that the peti-

„tion, although coming more than eight years after the

judgment of the Court of Appeals in the Shawkee |

infringement suit, was based on —

evidence. ö

in an opinion filed Jane 305 1943, the Court of

Appeals—opinion by Judge Jones, Judge Maris concur-

ring, Judge Buccs. R the *

holding:

(1) that the e was without substance, be-

cause the Clarke article was not material to the 1932

decision in the Hazel infringemert suit, or to the 1934

decision in the Shawkee infringement suit, and because

(2) representations as to the origin of the

Clarke article had been made to the Court of Appeals

in the Shawkee infringement suit while the same was

under advisement in. that court in 1933, and received

the attention of all of the members of. the court who

had - heard both cases. Not possibly can the informa-

tion as to the facts attending tk the publication of the

Clarke article be deemed to rate as’ after-discovered

evidence so far as either Hazel-Atlas or Shawkee is

concerned”; and

(3) that, even were the court to conclude other-

wise than against Shawkee on the merits, yet, the term

in which the Court of Appeals had decided the infringe-

ment suit having long since expired, the Court of Ap-

peals would be without power itself “to vacate or set

aside the decrees of the District Court which reside

ee. Counter-Statement of the Case.

* — AG

therein unaffected by any retention of jurisdiction in

this cow

8 The court below apparently did not deem it neces-

sary to pass upon the — for ascertainment and.

assessment of treble damages.

Neither of the ‘first or second grounds of the de-

cision below is presented as a reason for granting certio-

rari. Each is purely FACTUAL, and alone is dispositive

of the case.

Since an extensive statement of fact is not —

for a disposition of the petition, we confine ourselves

here to a brief recital of facts as found by the court

below. In our reply to the petition at No. 398 we have

set out in detdil the facts pertinent to both cases, and

in our appendix to this brief we set out the facts per-

taining only to the instant case.

The controlling facts found by the Court below.

1. In the Hazel infringement suit the Peiler patent

was held by the Court of Appeals (one judge dissenting)

to be a pioneer patent; 59 F. 2d 399, Opinion R. p. 94 (the

District Court’s opinion had held the patent not in-

fringed, but had not questioned its validity; 39 F. 2d

111). While the Clarke article was quoted and dis-

- cussed in the opinion of the Court of Appeals in the Hazel

infringement suit, yet, “wholly apart” from ‘it, the ma-

jority of the court below “upon turning to ‘the proofs’,*

drew their own conclusions in support of. the action

which the court thereupon took. * * what was held 4

in the Hazel-Atlas case was the court’s independent judg-

* Emphasis ours throughout this brief |

— —

Counter. statement oftheCase. . 5 eS

ment, regardless “a the Clarke’ article” (Opinion, R. p.

101).

1 the Shawkee infringement suit a limited prelimi-

nary in junetion had been granted. Shawkee appealed

from the order granting the preliminary injunction, and

when the case reached the Court of Appeals it was

agreed the case might be disposed of as if on final hear-

ing“; 68 F. 2d 726; this at ‘the euggeation of counsel

for Shawkee (R. p. 72). os

2. While the appeal was still under advisement in

the court below, counsel for Shawkee wrote to Judge

BUFFINGTON, submitting certain documents to show

that “the Clarke article was printed at the instigation.

of the Hartford-Empire Company, ‘through one of its

attorneys, R. F. Hatch” (Opinion, R. p. 99). Thereafter.

counsel for Shawkee communicated further with the

court, stating that the matter submitted “clearly shows

that the publication of this [Clarke] article in the Glass

Budget was instigated by the ingenious brain of Mr.

Hatch, one of the plaintiff’s [Hartford’s] attorneys”

(Opinion, R. p. 100). “There can be no doubt that the

matter received the attention of all of the members of

the court which had heard the Shawkee, as well as the

Hazel-Atlas case” (Opinion, R. p. 100). In brief,. the

matter alleged “does not qualify as after- discovered

evidence in either the Hazel-Atlas or the Shawkee suit”

| — P. 96).

3. The charge of. fraud goes to the authorship of

the Clarke article and not to its substance, which was

not seriously challenged below. “No substantial com-

plaint has yet been made that what the article contained

in material part, namely, the ascendency of gob-feeders,

ca

*

Nr * N oe 9 NN

. Cownter-Statement of the Case.

over stream feeders, was factually false” (Opinion, R.

p. 101).

4. While, as stated, the Court of Appeals was ad-

_ vised, while the Shawkee infringement suit was under

consideration, of the genesis of the Clarke article, it

plainly deemed that matter to be of no moment because

it held in favor of Hartford, and Judge WooLLEY, who

-had dissented in the Hazel infringement suit, filed a

special concurrence on the ground that he felt bound by ~

the decision therein, a thing which he certainly would

not have done had he felt that the Clarke article was

a matter of consequence to the decision either in the

Hazel infringement suit or in the Shawkee: jntringement

suit (see opinion below R. p. 101).

The decision of the Court of Appeals in the Shawkee

infringement suit. was followed by a petition for re-

hearing on behalf of Shawkee, based in part on the al-

leged newly discovered evidence as to the Clarke article.

which was denied February 27. 1934; 68 F. 2d 726. Fol-

lowing this, in 1935, Shawkee unsuccessfully sought

leave of the Court of Appeals to file a bill in the nature

of a bill of review, and in 1938 unsuccessfully sought

leave in the Court of Appeals to file a petition for re-

„hearing (Opinion, R. p. 100).

Summary of Argument. | 9

Summary of Argument.

1

.

. ee Ces wet anal te

the 1934 decision of the court below;

Second, th. the evidence relied on by. petitioners

cannot possibly qualify as after-discovered evidence;

Third. that, even were the Court to conelude other-

wise than against Shawkee on the first two grounds,

yet, the term in which the Court of Appeals had decided |

the infringement suit having expired, the Court of

Appeals would be without power itself to vacate or set

aside the decrees residing in the District Court. 0

ons,

Petitioners do no: contend that either of the first

two grounds of decision warrants review by this Court 15

—neither is presented as 2 reason for granting the

writ. Certiorari is therefore inappropriate. Petitioners.

are in reality attempting to use the third and subsidiary

ground of the decision below as a lever to. obtain a ne-

view of the first two grounds of that decision, which

grounds were purely factual and dispositive of the case. -

This Court doer not review enttromerted questions of

9

1

. There am no conflict with the decisions of othe

Circuit Courts of Appeals. On the contrary, the court

below followed the rule enouneed by this Court and uni-

forntiy recognized, Jimiting the power of appellate courte

|

*

neee e d ee 25 seg ©

See ieee tee tee PERE

sn acces —EAüUm . . dt Rinks Jano EE WOE PPR «| A BA da 2

. a *

ert 5 ‘Summary of Argument. |

to recall their mandates. The conflict alleged by peti.

2

tioners between the decision of the court below and the

Art Metal cases in the Second Circuit is non-existent.

The court below specifically considered the Art Metal |

cases and correctly differentiated this case from them. |

The Second Circuit Court of Appeals states and follows

the general rule, also followed by the court below in the

instant case, in Nachod et af v. Engineering d Research

Corporation, 108 F. 2d 594, decided immediately after the

Art Metal cases. The other decisions relied on by peti-

tioners for alleged conflict are not in point. Decisions of

the same courts subsequent to those relied on by peti-

tioners confirm respondent’s contention that no conflict

exists.

Petitioners’ contention that the judgment below is

in conflict with United States v. Throckmorton, 98 U. S.

61, and Marshall v. Holmes, 141 U. S. 589, is without

merit. Neither of those cases is authority for the

proposition that an appellate court has the power to re-

call its mandate after the expiration of the term, nor in

conflict with the established rule that no such power

exists. Those were cases dealing with original bills

brought in courts of original jurisdiction. The court

below specifically considered both of them and showed

their inapplicability. Petitioners‘ were not prevented

from fully exhibiting their case in the infringement suit.

IV

Petitioners’ contention that the decision in the

Hazel infringement suit “is the machinery for effecting

the fraud by which respondent has monopolized a major

industry” is unsound in fact and presents no proper

85 | Summary of Argument. 9

ground for certiorari. The Peiler patent afforded re-

spondent only the protection for the invention therein

disclosed and claimed. The public was and is free to use

the apparatus of the prior art. Moreover, petitioners

are wrong in assuming that, had it not been for the

Clarke article, the decisions of the Court of Appeals

in the infringement cases would have been different.

The court below held to the contrary. That determi-

nation constitutes no ground for the granting of certi-

‘orari, being merely a question of fact. Petitioners are

not without remedy. as

\ , i ee

Teystone Driller Co. v. Excavator Co., 290.U. S. 240,

is not applicable. The doctrine of that case applies only

while the court has control of the sub jec Aatter and

the parties, and the decision therein in no way derogates

trom the rule that a Court of Appeals may not recall its

mandate after the éxpiration of the term. eee

——

=

10

— 0 7 rr

ARGUMENT

First Point.

, The judgment below was based on three separate

and distinct grounds. Two of these grounds, either of

_ which was sufficient fulty to dispose of the case, are not

presented as reasons for granting the writ; therefore,

e

The court below held (1):

But, wholly apart from the Clarke article, thé’

majority of the court in the Hazel-Atlas case, upon

turning to ‘the proofs’, drew their own conclusions

in support of the action which the court thereupon

took. That such was the primary basis of the ma-

jority opinion in the Hazel-Atlas is confirmed

by. the opinion for the court in the wkee case

where, without mention of or reference to the Clarke

article, this court again held the Peiler patent valid.

True enough, in the Shawkee case the court referred |

to what it had held in the Hazel-Atlas case with re-

‘spect to the validity of the Peiler patent. But that

only served to confirm that what was held in ‘the

Hazel-Atlas case was the court’s independent judg-

ment, regardless of the Clarke article.” (R. p. 101)

The court below further held (2) :

Not possibly can the information as to the facts

attending the publication of the Clarke article de

deemed to rate as after-discovered evidence so far

as 8 Shawkee is concerned.” (R. p. 100)

The court below then said (3) :

“So far we have considered this matter on the

merits of the petitioners’ allegations and their

Argument. ) . ll

“standing to seek the relief for which they petition;

a

(R. p. 102)

8 even had its

conclusions in such regard been o it still lacked

power to vacate the decree of the District Court, the

mandate having gone down, and the term in which the

judgment of the Court of Appeals was entered having

long since expired. oa

Petitioners do not contend that either of the first

two grounds of decision warrants review by this Court—

neither of them is presented as a reason for granting the

writ. Certiorari is therefore isappropriate:

d the ground upon which the writ was asked or

granted, the review here being no broader than that

sought by the petitioner. Clark v. Williard, 294 U.S.

211, 216; Helvering v. Tex-Penn Oil Co., 300 U.S. |

481, 498; Washington W. and M. Coach Co. v. Na-

tional Labor Relations Board, 301 U.S. 142, 146.”

© Helis v. Ward, 308 U.S. 365, 370.

“This Court confinesd itself to the ground upon

which the writ was asked or granted. Alice State

Bank v. Houston Pasture Co., 247 U.S. 240, 242.

Clark v. Williard, 294 U.S. 211, 216. Morehead v.

New York ex rel. Tipaldo, 298 U.S. 587, 604-5.

But as that is not the ground upon which the

writ of certiorari was asked or granted, we confine

our discussion to the relied upon in asking

the intervention of this Hubbard v. Tod, 171

U.S. 474, 494.“ Alice State Bank et al. v. Seusten

Pasture Co., 247 U.S. 240, 242.

“It is well settled that this Court confines itself

—

12 ao ; Argument.

Accordingly, should this Court grant the writ and .

decide the ground upon which the writ was asked”

favorably to Shawkee, the judgment below would still

stand because its first two grounds of decision—or either

of them—fully disposed of the controversy. Certiorari

is consistently denied in such cases, or, if granted under

misapprehension, is promptly revoked:

“The decision of this case does not require. a de-

cision of the questions which are presented in the

petition for certiorari because of which the writ was

granted, and the certiorari heretofore granted in

this case is therefore revoked upon the authority of

Southern: Power Co. v. North Carolina Service Co.,

263 U.S. 508.” United States v. McFarland, 275

U.S. 485. 8 et

In Keller v. Adams-Campbell Co., 264 U. S. 314, this

Court granted certiorari in a patent infringement suit to

review the question of scope of intervening rights-a

question sufficienti important to justify the granting of

the writ. On the hearing, it developed that although the

lower courts had passed upon the question of intervening

rights, they had also decided the question of infringe-

ment, which alone was sufficient to dispose of the case.

In these circumstances, this Court: said:

“The result is that an order must be entered dis-

missing the writ of certiorari as improvidently

granted * * *.” (264 U.S. at 320)

Petitioners are in reality attempting to use the

third, and subsidiary, grourid of the decision below. as

a lever to obtain a review of the.first two grounds of that

decision, which grounds were purely factual’ and each of

which was any dispositive of the case. * this Court

Argument. . „

does not review on certiorari controverted questions of

fact: N

_ “This writ must be dismissed * * *.

“The argument developed that the controverted

question was whether the evidence sufficed to estab-

lish actual dedication of petitioner’s property to

public use—primarily a question of fact. That is

not the ground upon which we granted the petition

and if sufficiently developed would not have moved

us thereto.” Southern Power Co. v. North Carolina

Public Servic 0 „263 U.S. 508, 509. 5 ’

“Granti g of the writ would not be warranted merely

to réview the evidence or inferences drawn from _

‘General Talk: *.g ‘Pictures Corp. uv. Western Electric

Co., 304 U.S. 175, 178. 5

We do not grant a certiorari to review evidence and

discuss specific facts. od United States v. Johnston,

2868 U.S. 220, 227. 7

As this t wuld in Magnum Co. v. Coty, 262 U. 8.

159, 163:

The jurisdiction | to n up cases by certiorari

was not conferred upon this Court merely

to give the defeated party in the Circuit Court of

Appeals another ** a

| ae Argument.

Second Point.

The judgment below is not in conflict with the deci

sions of other Circuit Courts of Appeals.

The court below, after disposing of the case on the

merits, held that it lacked power to recall its mandate,

or to vacate the District Court’s decree entered pursuant

thereto, after the expiry of the term in which the. man-

date had issued and the judgment had been entered. The

court below (R. p. 102), far from creating a conflict with

the Second Circuit, Court of Appeals, as contended by

petitioners (Petition, p. 13), adhered to the general rule,

following and quoting from the same court's decision in

Nachod et al. v. Enginéering & Research 93 N

108 F. 2d 594:

Our term having expired a since the mandate

went down, we have no power to recall it.’ ( citing

cases) ä

Thus both Courts of Appeals reiterate and follow

1 the fundamental? principle enounced by this Court in,

Bronson v. Schulten, 104 U. S. 410, 415; and uniformly

observed by the Circuit Courts of Appeals, e. g.:

‘First CMCurr:

Case v. Sterling Cider Co., 15 F. 2d 52;

Hart et al. v. Wiltsee et al., 25 F. 2d 863.

SECOND Cmcorr:

Watts, Watts ck Co., Limited, v. Unione Aus-

.~ triaca Di Navigazione, 239 Fed. 1023;

Sund h Electric Co. v. Cutler-Hammer Mfg. Ca,

2 244 Fed. 163, 170;

Dobson v. United States, 31 F. 2d 288; certio-

rari denied 278 U. S. 653.

1

Argument. | 158

. THIRD cmcurr:

Montgomery v. Realty —— Corp, 81 5.

2d 642; affirmed 284 U. S. 547.

‘ FourRTH CIRCUIT: |

* Foster Bros. Mfg. Co. Inc. v. National Labor

Relations Board, 90 F. 2d 948.

SEVENTH CIRCUIT:

Hawkins v. Cleveland, C., Pe Co.,

N 99 Fed. $22.

E1cHTH Cmcurr: .

Guaranty Trust Co. of New York et al. v. Minne-

apolis & St. L. R. Co. et al., 98 F. 2d 345,

346-7;

Reynolds et al. v. Manhattan Trust Co. et al.,

109 Fed..97, 98-99. ö a

Petitioners contend (Petition, pp. 13-14) that the

decision of the court below is in conflict with the de-

cisions of the Circuit Court of Appeals for the Second

Circuit, antecedent to the Nachod case above cited, in

Art Metal Works, Inc., v. Abraham & Straus, Inc., 107

F. 2d 940, 107 F. 2d 944, certiorari denied 308 U. S. 621.

The Art Metal cases, however, are not germane because

based on a wholly different state of facts. The court

below specifically considered the Art Metal cases and

correctly differentiated this case from them.

In the Art Metal cases the defendant had bribed

Judge MANTON, who had written the opinions in both of

the cases. The decision in one of them, reversing the

District Court, was by a divided “court”.* Upon appli- .

cation to the Circuit Court of Appeals, it recalled its

mandate“, set aside the “judgments” entered pursuant

— —

70 F. 2d 639; 70 F. 2d 641.

16 A Argument.

thereto, and restored the cause to its docket for re“

argument of the appeals. But this action in no way

diminished the force of the rule of the Nachod case,

supra, as the court below pointed out:

“The procedure followed in the Art Metal cases,

cited supra, does not derogate from this rule. There

the vote of a judge of the Court of Appeals who had

been corrupted in respect of that litigation was nec-

essary to produce one of the two decisions in the

appellate court between the same parties and involv-

ing the same patent, so that no qualified court had

really: disposed of those appeals; and, by the same

token, no competent mandates ever issued, hence,

the term time was irrelevant: The appeals were in

effect treated as never having been coram judice

theretofore. The orders thereupon entered in order

to clear the record in the Art Metal cases of the for-

mer invalid action taken therein cannot properly be

utilized to-spell out power in a Circuit Court of Ap-

peals to recall its mandate after the expiration of

the term when no action has been taken within the

term to continue the jurisdiction of the court. The

view we thus take of the procedure followed in the

Art Metal cases is confirmed by the fact that after

the action taken therein looking to a de novo argu-

ment of those appeals, the same court, composed of

the same judges who had sat for the reargument of

the Art Metals appeals and had disposed of them on

November 20, 1939, just one month later (December

22, 1939) reasserted in the Nachod case, supra, the

lack of power in a Court of Appeals to recall its

mandate after the term has expired.” . R.

pp. 102-103).

Examination of the — in the Second Cir-

Argument. ; es 17

cuit Court of pa reveals that — for Art t Metal,

in seeking relief from the “judgments” which its adver-

sary had bought and paid for, gave full recognition to

the legal principle relied upon by the court below in the

“instant case, but differentiated from it, stating in their

brief before the Circuit Court of Appeals — in the

Roa Metal cases:

“No decree, therefore, was. peptone’ by a duly’

- constituted and completely disinterested court, and,

in legal effect, no hearing was had by the plaintiff.

The decrees, therefore, are void and a nullity.”

The distinction between the power to set aside, after

term, a void “judgment” and the lack of power to set

aside, after term, a genuine final judgment by a properly

constituted.court is basic and has been carefully observed

by the Circuit Court of Appeals for the Second Circuit

itself. Thus, although that court in the Art Metal cases

“exercised the power to vacate void “judgments” after

the close of the term in which they were entered“, it

recognized in immediately subsequent decisions that l

had no power to vacate after term the judgment entered

by a genuine court; Beidler v. Photostat Corporation,“

certiorari denied 310 U: S. 648; Nachod v. Engineering &

Research Corporation, supra.

If follows that there is no conflict between the Art

Metal cases and the case at bar.

Here agents of Manton had unsuccessfully at-

tempted to induce the petitioner to pay substantial sums

to buy a favorable decision, informing the petitioner that

unless a satisfactory arrangement was made, the case

would be decided adversely to him. The Circuit Court of

Appeals for the Second Circuit refused to recall its man-

date and vacate its judgment after the close of the term

in which it had been entered, and this Court denied

certiorari.

Lis GALORE / hana

REA AN SOO SR POS LEO A

18 Argument.

Petitioners further contend that the decision below

is in conflict with Winslow v. Staab, 242 Fed. 426 (C. C. A.

2), United States v. Sterling, 70 F. 2d 708 (C.C.A.2), cer.

tiorari denied, Commercial Trust Co. v. United States,

293 U. S. 584, In Re New Englaſi On- Reni Co., 9 F.

2d 344 (C. C. A. 1), and United States ex rel. Fisher v.

Williams, 67 Fed. 384 — 8).

No conflict exists.

In Winslow v. Staab the Circuit Court of Appeals for

the Second Circuit affirmed the action of the District

Court in setting aside a decree upon the ground of an

innocent misrepresentation by counsel, at that counsel's

request. ec | | |

In United States v. Sterling, the Circuit Court of

Appeals for the Second Circuit affirmed the action of the

District Court in setting aside a judgment of dismissal .

for want of prosecution on the ground that the Clerk had

erroneously placed the case on call calendar when in

fact the case had been referred tb a special master.

In The New England Oil- Refining Company case, the

Circuit Court of Appeals for the First Circuit denied 2

petition for a writ of mandamus requiring the District

Court to allow an appeal from its own order on the

ground that petitioner’s rights had not been impaired.

The District Court had apparently set aside on its own ©

motion a prior order approving a plan of reorganization

on the ground of fraudulent representations, during the

course of receivership . which had not yet

terminated. -

In United States ex rel. Fisher v. Williams, the Cir-

cuit Court of Appeals for the Eighth Circuit approved

7

Argument. 10

the action of the District Court in setting aside a final

decree: which the District Judge had not read and which

.

ing interlocutory.

None of these cases is authority for the e

i that a Circuit Court of Appeals has the power to recall

its mandate after the expiration of the term of its entry.

Moreover, in each of the Circuits in which the cases

relied on were decided, there have been subsequent deci-

sions confirming the lack of such power.

We have already referred to the decisions of the

- Second Circuit Court of Appeals in the Nachod and Beid-

ber cases.

In the First Circuit see Casey v. Sterling Cider vo. „

15 F. 2d 52 where the court said:

As the term at which the order of We

21, 1923, was entered has long since expired, and the

modification desired would involve a matter of sub-

stance, and not of mere form, we are without power

to make the „ and the motion must be

denied.“

See also Bert v. Wiltsee, 25 F. 40 N68, where, on 8

motion to recall the mandate after the expiration of the

term of its entry. the same court said:

after the close of the term at whitch

a final decree has been entered, it cannot be modified

in any matter of substance, but only for clerical

errors.“

In the Eighth mei ne . Trust Co. v. Min-

neapolis & St. L. R. Co., 98 F. 2d 345, 346-7, where the

court said:

¢

* 8 w 1 — _ — . -

ek Webra o RS : 5 l

rr — — A

of jurisdiction to modify or to empower the court

below to modify this decree, since the term at which

the mandate of this Court was entered has long

since expired.”

The judgment below is not in conflict with the deci-

sions of this Court,

Petitioners conténd (Petition pp. 18-19) that the

judgment below is in conflict with United States v.

. Throckmorton, 98 U. S. 61, and Marshall v. Holmes, 141

U. S. 589. No conflict exists. Neither of those cases is

authority for the proposition that an appellate court has

the power to recall its mandate after the expiration of

the term in which its judgment was entered and its man-

date issued, even upon the ground of fraud. In both _

those cases original bills to obtain relief from judgments

allegedly obtained by fraud were brought in courts of

original jurisdiction. The court below in the case at bar

specifically considered both cases and pointed out (Opin-

ion R. pp. 103-4) that if Shawkee feels itself aggrieved,

the course is open to it to file an original bill to impeach

the decree now standing ggainst it in the District Court.

As pointed out by the court below (Opinion R. p.

104), it is only in the situation where an original bill has

been filed in a court of original jurisdiction that the rule

of those cases “as to whether the alleged fraud is ex-

trinsic or intrinsic, becomes germane“

_ Petitioners contend that they were prevented “from

fully exhibiting their case” (petitioners’ brief, p. 19)

Argument. .

Wann e sith, Ghat ein ä

they rely on was thoroughly presented at the trial!

Petitioners have not pointed to any evidence relating

to any issue in the infringement suit which they v were

prevented from exhibiting”.

The e as.to whet kind or degres off frend

will justify relief against a judgment allegedly obtained

thereby is not germane to the ground of the judgment

below. upon which certiorari is sought; i. e., the lack of

power of the court below to recall its mandate after the

expiry of the term of its entry. :

The court below in holding that the alleged fraud

was not material to its 1934 judgment found it unneces-

sary to distinguish between “intrinsic” and “extrinsic”

_ fraud or to discuss the alleged conflict between the

. Throckmorton case and Marshall v. Holmes, but relied

on Toledo Scale Co. v. Computing Scale Co., 261 U. S. 399.

421. where this Court said: a

“There has been much discussion as to whether

extrinsic fraud is here alleged, and the case of

United States v. Throckmorton, 98 U.S. 61, is cited

and numerous other authorities since that case.

We do not find ourselves obliged to enter upon a

‘consideration of the sometimes nice distinctions

made between intrinsic and extrinsic frauds in the

: application of the rule, because in any case to

justify setting aside a decree for fraud whether

extrinsic or intrinsic, it must appear that the fraud

charged really prevented the party compiaining

from making a full and fair defense. If it does not

80 appear, then proof of the ultimate fact, to wit,

that the decree was obtained by fraud, fails.”

. . 1 .

PIA PT 72 * * 3 3 N Ls 2 ‘i . * e R

° | .

22 se Argument. 1

Clearly, there is no eonflict between the judgment

below and either United States v. Throo pokmorton or

‘Marshall v. Holmes. | |

Fourth Point.

_ Petitioners’ e

Hazel infringement suit “is the machinery for effecting

the ‘fraud by which respondent has menopolized a major

industry”, is unsound in fact and presents no proper

ground for certiorari.

\

The Peiler patent afforded respondent nite the pro-

tection of the particular invention therein disclosed

and claimed. The public was and is free to use the

apparatus of the prior art. Petitioners were not satis-

fied to use that apparatus but insisted upon using the

Peiler invention, as both the District Court and the

Circuit Court of Appeals found. |

Petitioners assume that, had it not been for the

Clarke article, the decisions of the Court of Appeals

in the infringement cases would have been different.

But the court below in the instant case held to the con-

trary. That determination i is not presented as a ground .

. for review, and if it were it would not warrant the writ,

for as we pointed out under our First Point, supra,

(pp. 11-12) this Court does not review controverted

questions of fact.

The effect « of the judgment below is the same as if

the court had considered the petition as one for leave to

file a bill of review in the District Court and had denied

that leave on the merits, first, because petitioners’ laches L

and lack of diligence prevented their showing to that

Argument. jie yy

court from qualifying as after-discovered evidence, and

second because the facts they — a" were

immaterial. ]

Moreover, the court below pointed out (Opinion, R.

pp. 103-4) that it is still open to petitioners to file an

original bill in a court of original jurisdiction to impeach

the judgment in the infringement case on.the ground of.

alleged fraud, citing Dowagiac Mfg. Co. v. McSherry

Mfg. Co., 155 Fed. 524, 527, 528; Cyclopedia of Federal

Procedure, Vol. 4, Sec. 1159, pp. 342-345. See also

Realty Acceptance Corporation v. Montgomery, 6 F.

Supp. 593; affirmed 77 F. 2d 762 (C.C:A. 3), certiorari

‘denied 296 U. S. 590, rehearing denied 296 U. S. 662.

Fifth Point.

“There is no conflict between the 3 below

and the Keystone Driller case.

Petitioners assert that the judgment below is in

conflict with this Court’s decision in Keystone Driller

Co. v. General Excavator Co., 290 U. S: 240. But the

doctrine of unclean hands applies only while the court

has control of the subject matter and the parties; United

States v. Morgan, 307 U. S. 183, 197. The Keystone

Driller case in no way derogates from the rule that a Cir-

cuit Court of Appeals may not recall its mandate after

the expiration of the term of its entry. There is thus no

conflict: and no ground for certiorarj.

_ Petitioners are in reality belatedly seeking recon-

sideration of issues heretofore fully litigated. This is

their tenth application to this Court or to the Third

Circuit Court of Appeals since its original decision.

The Clarke article as published was entirely. true.

. Petitioners have not pointed to any evidence relating to

the issues of the infringement suit which they were de-

prived of exhibiting below.

Petitioners have had their day in court with re-

pect to che issues of validity and infringement of the

patent and those issues were determined against them.

‘Now petitioners have had a hearing as to the effect of

the authorship of the Clarke article, and as to peti-

_tioners’ standing to present to a court their unsubstan-

tiated claim of recently acquired knowledge thereof, and

both issues—neither of which would present a proper

question for review by this Court—were determined

them. We respectfully submit that petitioners

“have no standing to seek a further review by this Court.

The petition should be denied.

Water J. BLENKo,

Attorney for Respondent.

November, 1943.

The Clarke Article. ) :

under the circumstances related in the Appendix to

_ Hartford’s brief in opposition to the petition of Hazel

in No. 398 and Hartford refers to and adopts the same

as a part hereof to show the facts and circumstances as

_/ the preparation of said article, the use thereof before

the Circuit Court of Appeals in the Hazel infringement

suit, the reply made thereto by Hazel in its original

.

out in said article.

. The bill of complaint was filed May 31, 1933. At

that time, one of the defendants, Shawkee Manufactur-

.

feeddps whose operation was charged to infringe the

Peiler patent in suit. Two other def , Glenshaw

Glass Company and McKee Glass Compan were using

the like feeders in day to day operation. The fourth

defendant, George R. Haub, was an engineer formerly in

the.employ of Hartford and of Hazel, 3

signer of the accused feeders R. p. 71):

The District Court filed its opinion on July 22, 1933,

granting a preliminary injunction, limited, however, to

enjoining the sale or disposition of the acqesed feeders

to third parties, and refusing to enjoin the use of the

29a.

)y

On June 27, 1933, the defendants filed their joint .

answer. Two of the defendants, Glenshaw Glass Com-

pany and McKee Glass Company, admitted in the answer

that they were then and had been licensed by Hartford

‘to use certain glass feeders owned by Hartford and

embodying and performing inventions of Hartford, in-

cluding “the method invention of the letters patent here |

in suit; and that they have acknowledged and rec-

a and still continue to acknowledge and recognize

the validity of letters patent of plaintiff including the

letters patent here in suit“. The defendants averred,

however, that if the claims in suit of the Peiler patent

1,655,391 in suit were interpreted to include the ap-

paratus and method of the accused device, then they

were invalid in view of certain prior art cited, including

prior art not before the court in the Hazel infringement a

sult (R. pp. 71-72).

The Shawkee defendants cis to the e Third Cir-

cuit Court of Appeals. The appeal was argued on Oeto-

ber 3; 1933. During the hearing of the appeal, Shawkee’s

_ counsel proposed in open court that the parties stipulate _

that the case be considered by the Court of Appeals as

iet on final hearing, and a written stipulation to that effect

was entered into and filed forthwith (R. p..72).

on oOetober 20, 1933, one of the counsel for Shawkee

wrote to one of the counsel for Hartford (R. p. 76),

- stating that, after the argument in the Circuit Court of 3

Appeals, certain correspondence had been brought to

the attention of Shawkee’s.counsel “showing that the

(Clarke) article * waspublished * at the

request of Hartford -Empire Company by one of its

attorneys, Mr. R. F. Hatch ,“ and on October

30th — counsel for Shawkee advised the Judges of the

Court of Appeals of the correspondence just referred to

(R p. 80). On the same day, counsel for Hartford ad-

vised counsel for Shawkee that if the latter desired that

the correspondence be placed before the Circuit Court

of Appeals and that Court is willing to accept | it, we will

interpose no objection”. (R. p. 79). N

Further correspondence relating to the Clarke ar-

ticle ensued between counsel for Shawkee and counsel

for Hartford, and between them and the Judges of the

Court * Appeals.

"ico of the letters submitted to the Judges of the

Court of Appeals are especially significant. One is a

letter written by Edmund P. Wood, Esq., to the late Wil-

liam J. Belknap, Esq., on November.14, 1933 (Record at

No. 398, p. 116)* (copies of which were furnished to the

Judges of the Court of Appeals and to Shawkee’s coun-

gel), confirming the fact that Mr. Wood was aware, prior

to the trial of the Hazel infringement suit, that R. F..

Hatch of Hartford had been instrumertal in having the

Clarke article published. The other is a letter written

by counsel for Shawkee to the Judges of the Court of

Appeals on December 16, 1933, calling attention to the

then recent decision of the Supreme Court in Keystone

Driller Co. v. General Excavator Co., 290 U. S. 240, and

asserting that the facts as to the genesis of the Clarke

‘article constituted a case of unclean hands, and further

stating that the correspondence sent to the Court of

a Appeals showed that

“Tn the proceedings below, the Hazel and nb

cases were argued and decided together, and Hartford.

by reference, made the pertinent parts of its reply in the

Hazel case a part of its * here (R. p. 64).

*

1 ublication of this tete in the Glass Budget

tigated by the ingenious brain of Mr. Hatch.

— of plaintiff's attorneys”,

was used in the Patent Office and that later, plaintiff's

brief in the Hazel infringement suit in that court quoted

from this article” (Record at No. 398, p. 105).

On January 11, 1934, the opinion of the Circuit

Court of Appeals was filed, dismissing the appeal (68 F.

2d 726), and judgment was entered the same day. On

February 8, 1934, a petition for rehearing was filed, based

in part on the alleged newly discovered evidence as to

the Clarke article, and again alleging that it showed

Hartford was in court with unclean hands. On Febru-

ary 21, 1934, the petition was denied.

On April 3, 1934, Shawkee filed a petition in this

Court for a writ of certiorari, No. 922, October Term.

1933, accompanied by a brief in which reference was

made (page 23) to “publications upon which the [Cir-

cuit] . Court [of Appeals] relies : These pub-

lications“ included the Clarke article which, however.

was not mentioned by name. This petition was denied

May 7. 1934. 292 U. S. 640.

Thereafter, Shawkee made numerous apglieations to

the Circuit Court of Appeals and filed two additionel

petitions to this Court for writs of certiorari, seeking to

_ reopen the infringement suit, all of which were denied.

The second petition for certiorari was denied October 15,

1934, 293 U. S. 600; and the third petition for certiorari

was denied October 28, 1935, 296 U. S. 635.

None of Shawkee’s many applications to the Circuit

Court of Appeals and to this Court, after its first petition .

for certiorari in April, 1934, made 2 reference to the

Clarke article,

Appendiz. 209

Meanwhile, an accounting of profits and damages

proceeded, pursuant to the mandate of the Circuit Court

of Appeals, until, in February, 1939, the parties settled

the accounting by agreement, and a final decree was en-

tered by the District Court (R. p. 17).

On October 24, 1941, the original petition herein was

filed. It was Shawkee’s ninth application to the Circuit -

Court of Appeals or to this Court since the Court of Ap-

peals originally decided the case. The — petition is

the tenth attempt.

—

—

Shawkee’ s Inactivity toon 1934 to 1941.

Counsel for Shawkee .was advised by counsel for

Hartford by a letter dated October 24, 1933 (R. p. 77)

that the existence of the papers presented to the Judges

of this Court by counsel for Shawkee, as aforesaid, were

known to counsel for Hazel before its appeal was heard

by the Circuit Court of Appeals, and by letter dated

October 30, 1933 (R. p. 80) counsel for Shawkee was ad-

vised that the same was also known to counsel for the

defendant in the Nivison-Weiskopf case (Messrs. Wood

and Wood). Hartford refers to the Appendix to its brief

in No. 398, pages 26, 27 and 28, for a statement of the

facts as to the knowledge of counsel for Hazel-Atlas

and Nivison-Weiskopf on this matter as of Oetober 30.

1933.

By said letters of October 24 and October 30, 1933,

counsel for Shawkee were given such information that

by the exercise of only ordinary diligence, they could

have ascertained all the additional facts as to the author-

ship of the article had they chosen to do so.

Counsel for Shawkee thereafter wrote to counsel for

Hazel (Record at No. 398, p. 104) asking whether he

could confirm the information given to counsel for Shaw-

kee by counsel for Hartford “that the matters: relating

to the article in the Glass Budget” referred to in the

papers submitted by counsel for Shawkee to the Court

on October 30, 1933, as above stated, “were fully known

to counsel” for Hazel at the time the case was tried. He

received a reply (R. p. 70) stating that counsel for Hazel

had the impression that he had believed, prior to the trial

of the Hazel infringement suit, that a Hartford repre-

sentative was responsible for the Clarke article, but that

he would have to go through his records before he could

answer more Gefinitely..

; It nowhere appears that Shawkee’s counsel made

any effort to have counsel for Hazel make any examina-

tion of his records to refresh his recollection as to what

he knew about the article, or that they made any effort

to-ascertain-what knowledge Messrs. Wood and Wood

had after a copy of Mr. Edmund Wood’s letter to Mr.

' Belknap was sent to counsel for Shawkeé, as aforesaid.

As hereinbefore stated, Shawkee’s counsel proposed

in open court at the hearing of its appeal in the Shawkee

infringement suit that the parties stipulate that the case

be considered by the Court of Appeals as if on final hear-

ing, and such a stipulation was made. Although Shaw- *

kee wrote to the Judges of the Court of Appeals, prior to

the decision of that court, that the publication of this

article in the Glass Budget was instigated by the in-

genious brain of Mr. Hatch, one of plaintiff's attorneys

ied) Me a ie request was made that the · de-

R fendants be relieved of the stipulation which their coun-

sel had proposed, 5 for the disposition of the

Appendix. —

case as though on final hearing, and no request was made

that the case be reopened to receive evidence as to the

genesis or truth of the Clarke article. In the petition for

rehearing above referred to, no contention was made

that said stipulation had been entered into inadvertently

nor did Shawkee seek to be discharged therefrom. __

On December 11. 1939, the United States of America

filed a complaint in the United States District Court for

. the Northern District of Ohio, Western Division, against .

Hartford, Hazel and ten other corporate defendants and

Na large number of individuals, alleging violation of the

anti- trust laws.of the United States. The complaint in

tat anti- trust suit contained detailed charges as to the

authorship of said article (R. p. 69; Record at No. 398, p.

187, pp. 205-6) which were thereby made of public rec-

ord. A complete copy of said complaint was in the hands

of present counsel for Shawkee shortly after the filing

thereof, as was admitted by said counsel at the hearing

in the Circuit Court of Appeals on the original petition. —

There is nothing to show that Shawkee made any at-

tempt: to investigate the facts as to the preparation of

‘said article in or immediately after December, 1939 when

_ Shawkee’s counsel came into possession of the said com-

plaint, or to call the same to the attention of the *

Court of 9 at that time.

Petitioners’ Reason for 8 >

Activity in 194}.

Glenshaw Glass Company, one of the Shawkee peti-

tioners herein, was a licensee of Hartford before, during

‘and after the Shawkee infringement suit, paying agreed

royalties for its use of certain A owned by Hart-

* (R. p. 71).

— 1 ‘ . 8 oa vere Be bk

32 Append.

In 1940, Glenshaw, being still such a Hartford

' licensee, refused to continue payment of the agreed roy-

alties, and on October 14, 1941, Hartford sued Glenshaw

for the overdue royaltiee. ö

on October 24, 1941, the original Sha wkee petition

herein was filed in the Circuit Court of Appeals.

Factual errors in the petition.

The instant Shawkee petition and brief include

important factual errors, including the following:

(1) The petition and brief repeatedly allege (pages

4, 5, 9, 10, 12, 19) that the Clarke article is factually

false. These charges are contrary to the record and

contrary to the-findings of the court below (Opinion, R

p. 101). No such charge is made in the petition or brief

in the.companion Hazel case, No. 398.

The only items-of evidence cited (Petition pp: 5-6)

for petitioners’ charges of falsity in the Clarke article

are letters concerning Hatch’s first draft of the article

and the correction thereof, together with a letter by Mr.

Carter of the Owens company approving the article “if

not too rank”, i. e., if “not too rough on Owens” 2

at No. 398, p. 92). 9 151

: The record plainly shows that, although Hatch’s

first draft of the article did contain some errors, those

errors were corrected. (Record at No. 398, pp. 84-87), and

the article, as published, was and is entirely true. The

truth of the article is established beyond question by the

Clarke affidavit of 1932 (Record at No. 398, p. 111), by

the Maloney affidavit of 1935 (Record at No. 398, p.

112), and by affidavits of Dorsey, Hatch and Brown

(Record at No. 398, pp. 113, 80, and 73).

»

a Appendiz. | 33

(2) The Shawkee petition erroneously states (pp.

485) that the publication of the Clarke article was sug-

gested by R. D. Brown of Hartford to H. W. Carter of the

Owens company. The record clearly shows that there

was no connection whatever between Brown’s suggestion

to Carter that Carter write an historical article and

Hatch’s later preparation of the Clarke article. See.Rec-

ord at No. 398, p. 75 (Brown affidavit) ; and also p. 83, p.

87 (Hatch affidavit) which show that when Hatch

drafted the article, he did not know that it was to be filed

in Patent Office proceedings, did not compile it for that

purpose, “but solely in order to bring the facts stated in

the article to the attention of the glass making trade”,

and did not make any changes in the article in view of

its ees to the Patent Office.

(3) -The Shawkee petitica further erroneously

states (p. 6) that the references to the Clark article in

Hartford’s brief before the Court of Appeals in the Hazel

_ infringement suit “were known to be falsé when they

were made to the court by respondént”. On the con-

. trary, the record shows that those references were en-

tirely true when they were made. See the evidence.cited

above at page 32, showing that the Clarke article as mt

+ ished was true throughout. |

ei ‘Notwithstanding the harsh words used in the Shaw-

kee petition and brief; such as false“, “cérrupt”, “spuri-

ous”, etc., the facts remain that the Clarke article was

factually true; that it was checked and corrected by

Clarke and by him verified through consultation with

Maloney, another union official familiar with the facts;

and that it was thereupon adopted by Clarke as his own,

all prior to its publication (Record at No. 398, pp. 85-86).

34 aoe . Appendiz.

The 1 to Hartford’s brief in * to

the Hazel petition, No. 398, points out at pages 33-36,

certain factual errors of importance in the dissenting

opinion below. Hartford refers to and adopts that por-

tion of said Appendix, as the errors therein referred to

are pertinent to the Shawheo cass as well as to the Hane

case.

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